Israel: The security barrier - Between international law, constitutional law, and domestic judicial review

International Journal of Constitutional Law

Volumn 4, Issue 3, 2006, Pages 540-552

  Barak Erez, Daphne ^a  

^a TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33746088823     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol021     Document Type: Review

References (39)

1. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 68, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
2. HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [2005] IsrSC 58(5) 807, translated in 38 Isr. L. Rev. 83 (2005) and 43 Int'l Legal Materials 1099 (2005) (hereinafter Beit Sourik). English translation is also available at http://elyon1.court.gov.il.
3. HCJ 7957/04 Maràabe v. The Prime Minister of Israel (unpublished at time of writing) (hereinafter Maràabe); English translation is available at http://elyon1.court.gov.il.
4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 43 Int'l Legal Materials 1999 (2004) (July 9) (hereinafter Advisory Opinion).
5. For most of its length, the barrier is a strip approximately the width of a four-lane highway with a chain-link fence in the middle supporting an intrusion detection system. About 3 percent of it is a concrete wall, designed to block shootings at Israeli targets.
6. The actions of Israel in the occupied territories have been subject to judicial review by the Israeli Supreme Court since the beginning of Israeli rule, following a decision of the Israeli government not to oppose petitions regarding the territories. Therefore, throughout the years, the Israeli Supreme Court has had the opportunity to review many decisions of the Israeli occupying forces in both civil and military context. On the jurisprudence of the Israeli Supreme Court regarding the territories, see David Kretzmer, The Occupation of Justice (State Univ. N.Y. Press 2002).
7. Two symposia have been devoted to the Advisory Opinion. See Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99 Am. J. Int'l. L. 1 (2005)
8. Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier, 38 Isr. L. Rev. 6 (2005).
9. For articles that looked at the Advisory Opinion and the Beit Sourik decision together see Geoffrey R. Watson, The "Wall Decision in Legal and Political Context. 99 Am. J. Int'l L. 6 (2005)
10. David Kretzner, The Advisory Opinion: The Light Treatment of International Judicial Review of the Construction of the Separation Barrier, 38 Isr. L. Rev. 6 (2005)
11. Yuval Shany, Capacities and Inadequacies: A Look at the Two Separation Barrier Cases, 38 Isr. L. Rev. 230 (2005)
12. Yuval Shany, Head Against the Wall? Israel's Reflection of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Y.B. Int'l Humanitarian L. (forthcoming 2006). For a detailed discussion of the two Israeli decisions - Beit Sourik and Maràbe-together with the Advisory Opinion,
13. see Aeyal M. Gross, The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, 19 Leiden J. Int'l L. (forthcoming).
14. See Daphne Barak-Erez The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue 2 Int'l J. Const. L. (I·CON) 611 (2004).
15. Anne Marie Slaughter, A Typology of Transjudicial Communication, 29 U. Rich. L. Rev. 99 (1994)
16. Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication 107 Yale L.J. 273 (1997).
17. See also Anne-Marie Slaughter, A New World Order (Princeton Univ. Press 2005).
18. Israel's consistent official position has been that the Fourth Geneva Convention does not apply to the occupied territories because the convention applies only to territories that the occupier removes from the control of their legal sovereign. Israel is unwilling to grant implicit recognition to Egypt's and Jordan's sovereignty in Gaza and the West Bank, respectively (maintaining these nations had occupied the territories unlawfully when the British Mandate of Palestine ended). In addition, Israel has rejected the view that the convention reflects customary international law. However, Israel has declared that it will voluntarily comply with the convention's humanitarian provisions and, therefore, the Israeli Supreme Court also applies them.
19. As a result of the Beit Sourik ruling, the Israeli government changed plans for the security barrier in the area, but the new plan has been contested in a new petition arguing that it has not solved the problems posed to Palestinian residents. See HCJ 426/05 Bido Village Council v. The Government of Israel (pending).
20. Specifically, according to the International Court of justice, "the Court, from the material available to it, is not convinced that the specific course Israel chose for the wall was necessary to attain its security objectives." Advisory Opinion, supra note 4, at para. 137.
21. For a criticism of this argument with regard to the proper interpretation of article 43 of The Hague Regulations, see Gross, supra note 7.
22. This observation brings to mind the classic debate on the legitimate scope of judicial discretion. See, e.g., Ronald Dworkin, Hard Cases, in Taking Rights Seriously 81 (Duckworth 1977).
23. For a detailed institutional comparison between the two courts (focusing on the Beit Sourik decision), see Shany, Capacities and Inadequacies, supra note 7, at 240-242.
24. See Daphne Barak-Erez, Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court, 16 Canadian J. Law & Socy 93 (2001).
25. In this context, Gross uses the metaphors of seeing the "big picture" or the whole "forest" (as opposed to seeing only the trees). See Gross, supra note 7.
26. See part 6 infra.
27. See HCJ 4481/91 Bargil v. Government of Israel [1992] IsrSC 47(4) 210.
28. See HCJ 390/79 Dweikat v. Government of Israel [1980] IsrSC 34(1) 1.
29. Id. at 29.
30. See HCJ 610/78 Oyev v. Minister of Defense [1979] IsrSC 33(2) 113, 131, 134.
31. According to the Oslo Accords, the status of the settlements was to be resolved through bilateral negotiation. See Declaration of Principles on Interim Self-Government Arrangements, Israel-P.L.O., Sept. 13 1993, Art. V(3), 32 Int'l Legal Materials 1525 (1993).
32. HCJ 1661/05 Gaza Beach Regional Authority v. Israeli Knesset [2006] IsrSC 59(2) 481 (hereinafter Gaza Beach).
33. In Gaza Beach, the Court stressed it had left open other related questions, such as the application of the Basic Laws to Israeli citizens who are not only outside Israel but also outside territories held by Israel, as well as their application to non-israelis in territories held by Israel.
34. Within Israel proper, the Basic Laws usually apply universally, and not only to citizens. Basic Law: Freedom of Occupation, which deals with the right to work and choose a profession of one's desire, is limited to citizens and residents, and does not apply to tourists and visitors (Section 3 of this Basic Law states: Every Israel national or resident has the right to engage in any occupation, profession or trade). Basic Law: Human Dignity and Liberty grants the rights it protects to all persons except the right to enter Israel from abroad, which is limited to Israeli nationals (this distinction is found in Section 6 of this Basic Law. Subsection (a) states: "All persons are free to leave Israel," whereas subsection (b) states: "Every Israel national has the right of entry into Israel from abroad"). The English translation is available at: http://www.knesset.gov.il.
35. In fact, the Israeli Supreme Court had already dismissed some other petitions based on the principles laid down in the precedents of Beit Sourik and Maraabe. See HCJ 5683/04 Beit Sira Village Council v. Government of Israel (to be published September 1, 2006)
36. HCJ 6336/04 Mousa v. The Prime Minister (to be published October 1, 2006)
37. HCJ 4825/04 Alian v. The Prime Minister (to be published, March 16, 2006).
38. For a criticism of this type of "landmark case," see Ronen Shamir, 'Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice, 24 L. & Soc. Rev. 781 (1990).
39. The Advisory Opinion mentions briefly one decision of the Israeli Supreme Court when it discusses the issue of the applicability of the Fourth Geneva Convention in the occupied territories. See Advisory Opinion, supra note 4, at para. 100.